Bogoro, l’œuvre-enquête de Franck Leibovici et Julien Seroussi #3 Finding out the facts

One of the first public renderings of the investigation undertaken by Franck Leibovici and Julien Seroussi of the Katanga/Ngudjolo case materials is the book bogoro¹, named after the small village of the Democratic Republic of Congo (DRC) targeted by a violent attack in 2003, which gave rise to the court case. The book stems from the careful scrutiny of the thousands of pages of transcripts resulting from the five long years of hearings. Leibovici and Seroussi carefully selected a set of extracts that shed light on certain obstacles that made it difficult for the lawyers to do their job. Their goal was not to pinpoint the dysfunctions of the legal proceedings, but rather to identify the “anthropological dimension buried in the protagonists’ testimonies, which went unnoticed in the hearings, except when it became an obstacle to the progress of the legal procedure²”.

Thus, on page 245 of the book, we may read the following dialogue between the court and Chief Manu, one of the defence witnesses:

q. you know this woman very well, don’t you?
a. i know her very well. she is someone from my family.
q. when you say she is a person from ‘my family,’ chief manu, is she
a person from your close family or from your extended family, as we know
it in ituri or in the congo in a general sense?
a. her mother and my mother were born in the same household, in the
same family. her mother and my mother are daughters of buyi (*phon).
we are brothers. she is born — she was born of someone else and i was
born of someone else but because of our mothers, we are brother and
sister. she is not someone from lukpa —
the interpreter: from blokwa (*phon), the swahili interpreter corrects.
the witness: (interpretation) — but my mother and her mother are sisters.

Tagging the trial

This part is tagged “civil status”. A substantial part of the work done around the book consisted in structuring the mass of texts using an index of key words, such as “fetish”, “militia” or “uniforms”. When applied to certain paragraphs, these tags draw our attention to specific aspects of the trial. They offer a transversal reading of the transcripts and focus on the malleable nature of words, that become loaded with new meanings as the hearings proceed. All of these tags are grouped into an index where they resonate and form unexpected “families”. Compiled in chronological order, the book gives a voice to former child soldiers who are prosecution witnesses, then to victims, defence witnesses and court employees. The writing system set up by the authors bypasses the hierarchical organisation that influences the positions and status of each individual within the court. Moreover, the pauses imposed by the delays and interference due to the tools and operations required to translate from Swahili and Lingala into French and English, are not apparent upon reading, although they are sometimes apparent in certain extracts included for this purpose in the book. The choice of sticking to a single language in the book (French or English, depending on the edition) makes it easier to read, while giving, at least in appearance, an equally intelligible discourse to each of the protagonists. This monolingualism is appropriate as it allows one to concentrate on the content of the interventions and on the circulation of the terms highlighted by the tag system.

And if such a system had been used by the judges to analyse the materials and testimonies produced during the trial, would they have considered the facts (and the relationship between these facts) differently? Franck Leibovici analyses the “weight-of-evidence logic” (his own words) that encumbers the lawyers and their understanding of the facts, due, according to him, to the particular strategy chosen by the prosecutor. He explains that, ahead of the trial,

“among the numerous facts, the prosecutor selects a mere handful, which he considers sufficiently robust to form the basis of the legal strategy that he has already decided to adopt. in other words, he builds the equivalent of an inverted pyramid, standing on its apex: he will base a legal construction, establishing the accountability of the accused, on a well-established “simple fact”. the recipe is therefore 10 % facts for 90 % law. the problem is that in this process, the so-called “fact” is not very stable: a person’s civil status is not clearly established, nor are their filiations, the chains of command or even the geography of the territories. Throughout the trial, the judges keep demanding an official map of the region, which does not exist, and end up by having to ask the witnesses to draw the roads leading to or from their villages from memory.

it is not just that so much information is missing, but the that the categories used and the witnesses’ practices differ from those of the court. this is a common problem in social sciences, sociology, ethnology or anthropology, but one that international criminal law, as a recent discipline, is not yet prepared for. It is never a problem for national criminal law as the judge and the defendants belong to the same culture, the same society. in this trial, it was the facts that were paradoxically the most overlooked – as were the tools to apprehend them, to grasp them. Our idea was to develop tools to raise the judges’ awareness of the field via documents (since they never visit the locations themselves). this would widen the base of the inverted pyramid, so that it no longer rests on its apex, but on a larger surface. so, our question was: how can we increase attention to the facts during a trial knowing that this is not the lawyers’ field, but rather that of other disciplines such as the social sciences, art or poetry?”

Compare professional visions

Leibovici and Seroussi’s reflections and experiments draw upon the work of social science researchers who have themselves taken a close interest in international justice. In her book Fact-Finding Without Facts (2010), the American professor of criminal law Nancy Combs notes that international trials are often plagued by cultural differences, translation problems and a lack of documentary evidence.

“Witnesses often find it difficult to answer basic factual questions. For example, with a few notable exceptions, witnesses have trouble providing the dates of events they have witnessed. In addition, they have difficulty estimating distances, time and numbers, and analysing maps, photographs or sketches. The inability to answer these questions can significantly affect the court’s ability to determine the facts. […] Sometimes, questions remain unanswered, not because the witnesses have no knowledge of the subject, but because they do not understand the questions asked, or because Western court staff do not understand the answers given.³.”

Through her research, Combs realised that 50 % of witnesses contradict their initial statements during a trial. This can be explained by cultural distances, but she adds that some witnesses also do this voluntarily, exploiting alleged cultural differences to confuse judges in order, for example, to protect a defendant.

During our discussions, Seroussi underlined the fact that, in the national legal system, judges can rely on shared truth regimes, stable administrative and police networks, and archives. None of this exists in countries at war, either because these elements have been destroyed, or because they are inaccessible, or because the forms are so different that we are unable to recognise them. “There are very few tools in the court, he adds, let alone standardised tools, available to judges, investigators and lawyers to help them understand or reconstruct the context.”

While we expect judges and courts to be able to exercise their responsibilities in an objective manner, their “professional vision”, or their “professional perception standards”, in the words of the American linguist Charles Goodwin⁴, are determined by the standards established among their professional community. In the performance of their duties, lawyers rely upon what Goodwin calls “socially organised ways of seeing and understanding events that are answerable to the distinctive interests of a particular social group”.

This “professional vision” guides the way judges and other legal actors look at an image, map or other document presented during a trial. The French lawyer, former assistant to Judge Cotte at the International Criminal Court (ICC), Marianne Saracco, pointed out that “the lawyer’s eye is made impatient by the need to qualify the facts”.

franck leibovici, julien seroussi, muzungu, 2016. screenshot of an online broadcasting of a hearing (court 3)

Anthropology and sociology at the ICC

This divergent approach to the facts may explain why Seroussi’s appointment as research assistant to Judge Cotte in 2009 could be considered problematic by his colleagues at the ICC. As he himself explains, the recruitment of a sociologist was intended to address the obstacles and distances faced by the judge,

“by providing the means to seize the facts”. This recruitment was a common sense decision for the French magistrate who was familiar with specialised units, which bring together health or finance professionals alongside magistrates, in order to facilitate the investigation of cases that are considered to be complex. In the world of international justice, this was a controversial decision. One of the judges told me that my presence at the International Criminal Court for former Yugoslavia would have been considered an “anathema”. The presence of a sociologist raised the question of impartiality, insofar as I was able to draw the judge’s attention to background information that had not been the subject of an adversarial debate at the hearing⁵.”

Seroussi had to reassure his colleagues by arguing that it would be difficult for him to provide such information to the judge, as he was just as unfamiliar with the political situation in the DRC and the socio-cultural context of Ituri, as the rest of the lawyers. His task was rather to provide the judge with other types of tools to apprehend the facts, such as associating colour codes with certain types of information to make it easier to cross-check them, or providing narrative summaries of the hearings. These attempts paved the way for his collaboration with Leibovici.

In his article “Investigating the unknown⁶”, the French anthropologist Élisabeth Claverie – who conducted a field investigation around the Katanga/Ngudjolo trial – compares the radically different ways in which social scientists and lawyers examine facts and evidence in the context of war crimes and mass crimes. Indeed, their motivations differ: the former work to obtain knowledge and then disseminate it to academia and the public, while the latter seek to “impute, judge, prove and sanction”. Obtaining false identity documents, which will appear to the court to be a deliberate fraud, is considered a commonplace sociological fact in a country at war, for example. For an anthropologist such as Claverie, it is a survival tactic, not a manifestation of the witness’s lack of credibility.

“Another example of the subjective reservation of witnesses used by the defence as evidence of non-credibility: the failure to take into account the ritual prohibition of pronouncing certain names, that of certain dead people, a reserved attitude that is interpreted as an indication of wrongful concealment or denounced as coming from an unreliable person […]⁷.”

Claverie notes that lawyers are bound by

“the obligation to accept only ”facts relevant to the case”, i.e. the facts strictly circumscribed by the charges, which, for an anthropologist, can be a very narrow scope through which to inform the search for causes⁸.”

Leibovici recalls that for social sciences,

a fact is, precisely, made, ‘‘fabricated’’ using tools that record, measure and stabilise, so that what has been captured from a fleeting reality may be preserved, shared with others and circulated. without this apparatus, without this equipment, nothing can be done, because facts do not exist in nature.”

Experimenting with alternative tools

In December 2017, Leibovici and Seroussi organised a one-day public workshop at the Quai Branly-Jacques Chirac Museum where ICC members involved in the Katanga/Ngudjolo trial could discuss the problems encountered during the trial with researchers and artists who had worked in the same field. Élisabeth Claverie discussed these issues with Judge Bruno Cotte, Marianne Saracco, lawyer and legal representative of victims at the ICC, Fidel Luvengika Nsita, investigator at the Office of the Prosecutor at the ICC, Serge Sambou, French historian Pascal Plas, and French political science researcher Thierry Vircoulon. In court, lawyers on the different teams are not allowed to exchange information or discuss the cases they are handling. This was therefore the first time that the parties involved in the Katanga/Ngudjolo trial had the opportunity to speak freely and publicly about their respective experiences, in the relatively neutral space (at least in their opinion)⁹of the museum. Taking the book bogoro as a starting point¹⁰, the speakers and the public debated three concepts that proved problematic during the trial: territory, family and militias. The aim of the round table was to create the conditions for a meeting between different “professional visions”, in order to see how the articulation of law, social sciences and art could lead to an enriched use of their respective tools.

This event is characteristic of the methodology used by Leibovici and Seroussi: the production of artistic objects (such as the book bogoro), which re-present certain problems that have come to light during the trial to analyse them through a set of heterogeneous perspectives. In return, these objects form a shared space in which to encourage the emergence, among the communities concerned and in various ways, of alternative gestures and conversations that can permeate their daily and professional practices. Art and poetry are not used here as supposedly autonomous material tools but as objectives: how can we understand masses of texts and pictures differently by using, for example, a connected model, thanks to the bogoro tag system which is used again, as we shall see, in the installation muzungu. The devising of textual or visual systems is obviously not solely reserved to the fields of art or poetry, but these domains open up possibilities of experimentation and timescales that the ICC cannot afford, with their own resources, to devote to a reflection on its own tools.

Leibovici explains that “art and poetry do indeed reside ‘‘in the making’’. their work consists in manufacturing ultra-precise equipment and apparatus, but for questions and objects that do not necessarily pre-exist… a successful work will always provide a very specific response, but we do not know in advance to what. all the work consists in knowing to which question it might form a response. once it is found, we admire the quality of the response. be it in social sciences or in art, this contingent and manufactured dimension is not a flaw, but a strength. With a renewed understanding of what a “fact” is, we can then broaden the basis on which international justice seeks to forge its new law.”

Since the ICC often uses external service providers to design its software, why should it not work with artists and other professionals involved in the Leibovici and Seroussi project? In their postscript to bogoro, they describe what they call “forensic writing practices”. By extracting what they refer to as “the relevant moments” carefully chosen from a huge mass of documents, which is available but impracticable, they produce descriptions that no longer depend solely on the overhanging legal categories. They include those of all the people involved, with no pre-established hierarchy. As you leaf through the book in search of the keyword “militia”, your understanding of the term is thus enriched by the different definitions given by the protagonists, which through aggregation and metamorphosis, end up by forming a description that is not consensual but informed by the perspectives of all concerned. The ICC fully understands the value of such a mechanism, as the idea of working with NGOs to create podcasts around a selection of keywords is now gaining ground, with the aim of broadcasting them in countries or regions where “situations” are under investigation, trial or reparation. This would allow a shared vocabulary and a set of common references to be established, as part of its reparation and reconciliation missions.

Under the guise of a technical investigation, the works also have a political claim. The publishing of a Swahili edition of bogoro is therefore a means for Leibovici and Seroussi to raise awareness of the trial among the main communities concerned: the inhabitants of Ituri. The production of an audio version also seeks to compensate for the absence of distribution channels for books in the DRC, and to allow the book to be circulated among the populations most directly affected by the event and the trial. But this staggering amount of work could never have been achieved without the logistics support provided by the ICC to identify and extract, from the thousands of hours of video, the passages in the native language of the witnesses and victims that were used for the French version of the book. To progress from the one-off diffusion of a book of poetry inspired by the Swahili recordings to the mainstreaming of this type of process is the ultimate aim of the project: to ensure that these new methods are implemented, standardised and mainstreamed.

Translation by Angela Kent

Cover: franck leibovici, julien seroussi, muzungu, 2016. photo of the bogoro institute, tendered through the witness p-258.